112 F.

3d 1103
10 Fla. L. Weekly Fed. C 934

Bobby Earl LUSK, Petitioner-Appellant,

v.
Harry K. SINGLETARY, Secretary, Florida Department of
Corrections, Respondent-Appellee.
No. 94-4597.

United States Court of Appeals,

Eleventh Circuit
May 15, 1997.

Robert Wesley, Tallahassee, FL, Matthew Lawry Philadelphia, PA, for

Petitioner-Appellant.
Robert Butterworth, Attorney General, Miami, FL, Charles M. Fahlbusch,
Asst. Atty. Gen., Hollywood, FL, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and
COHILL* , Senior District Judge.
HATCHETT, Chief Judge:

The appellant, Bobby Earl Lusk, appeals the district court's ruling that he is not
entitled to habeas corpus relief due to a state procedural bar. We affirm.

BACKGROUND
2

On January 26, 1977, a grand jury indicted Lusk on one count of first degree
murder and two counts of robbery. During the pretrial proceedings, three
psychiatrists found Lusk competent to stand trial, and one of the three
psychiatrists recommended psychological testing to confirm his determination.
In May, 1977, a jury convicted Lusk on all three counts and recommended a

sentence of death. The trial court overrode the jury recommendation and
sentenced Lusk to life imprisonment with twenty-five year minimum
mandatory term on the murder and to two consecutive life sentences on the
robberies.
3

Lusk appealed his conviction challenging whether the trial court erred in
denying his repeated motions for mistrial on grounds of prosecutorial
misconduct.1 On February 27, 1979, the Third District Court of Appeal
affirmed the trial court. Lusk v. State, 367 So.2d 1088 (Fla.3d D.C.A.1979).

In 1978, while in prison, Lusk murdered a fellow inmate. For this murder a
conviction resulted and a sentence of death. Lusk appealed, and the Third
District Court of Appeal affirmed. Lusk v. State, 446 So.2d 1038 (Fla.), cert.
denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The trial court
denied Lusk's motion under Florida Rule of Criminal Procedure 3.850, and the
state district court of appeal affirmed. Lusk v. State, 498 So.2d 902 (Fla.), cert.
denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517 (1987). Lusk then filed
a federal habeas corpus petition that the district court granted vacating his death
sentence. On appeal, this court reversed and reinstated Lusk's death sentence.
See Lusk v. Dugger, 890 F.2d 332, 334 (11th Cir.1989), reh'g denied, 894 F.2d
414 (11th Cir.), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805
(1990).

In 1991, Lusk filed a Rule 3.850 motion attacking his 1977 convictions on
several grounds: incompetence; failure to hold a competency hearing;
prosecutorial misconduct; and ineffective assistance of counsel for failure to
object to the prosecutor's comments. After a non-evidentiary telephonic
hearing, the trial court denied the motion, holding that Rule 3.850 required
Lusk to file his motion before 1987, and that Lusk's belated motion did not fall
within the exception to that rule's time limitations period. The trial court also
reviewed the record and found that Lusk had been properly adjudicated
competent. Lusk appealed the trial court's denial, and the state district court of
appeal affirmed. Lusk then filed this habeas corpus petition in the federal
district court, raising the same claims as in his state Rule 3.850 action and
requesting an evidentiary hearing. Following the magistrate judge's report and
recommendation, the district court denied Lusk's petition for writ of habeas
corpus on grounds of the state procedural bar under Rule 3.850.

ISSUE
6

Whether the district court erred in denying habeas corpus relief on grounds of a
state procedural bar without holding an evidentiary hearing.

DISCUSSION
7

On appeal, Lusk argues that the district court erred in finding his claims
procedurally barred without conducting an evidentiary hearing into the facts
underlying the state procedural bar. Lusk, the state maintains, could have
through due diligence discovered the issues raised in his petition before those
issues became time barred under Florida Rule of Criminal Procedure 3.850.
Whether a petitioner's actions or inaction creates a state law procedural bar of
particular claims is a mixed question of law and fact. Therefore, we review the
district court's determination that Lusk was procedurally barred from raising his
claims in federal court de novo. Tower v. Phillips, 7 F.3d 206, 210 (11th
Cir.1993). Additionally, we review the district court's decision applying the
cause and prejudice rules to the procedural bar issues de novo. Macklin v.
Singletary, 24 F.3d 1307, 1312-1313 (11th Cir.1994), cert. denied, 513 U.S.
1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

The procedural bar of Rule 3.850 involves the following time limitations:

9 ... motion shall be filed or considered pursuant to this rule if filed more than 2
No
years after the judgment and sentence becomes final in a noncapital case or more
than 1 year after the judgment and sentence become final in a capital case in which a
death sentence has been imposed unless it alleges that (1) the facts on which the
claim is predicated were unknown to the movant or the movant's attorney and could
not have been ascertained by the exercise of due diligence, or (2) the fundamental
constitutional right asserted was not established within the period provided for
herein and has been held to apply retroactively.
10

Fla.R.Crim.Pro. 3.850(b). Lusk unquestionably failed to meet the two-year

deadline, and consequently, he alleged that the first exception, Rule 3.850(b)
(1), applies. To meet that exception, Lusk had to prove that the facts underlying
his claims were unknown and could not have been discovered through the
exercise of due diligence. See, e.g., Porter v. Singletary, 653 So.2d 374
(Fla.1995), cert. denied, 514 U.S. 1092, 115 S.Ct. 1816, 131 L.Ed.2d 739
(1995).

11

Upon review of the facts and circumstances here, we hold that Lusk has failed
to meet the exception expressed in Rule 3.850(b)(1). Because Lusk has had
repeated legal representation since his 1977 conviction, through due diligence,
Lusk or his various lawyers should have known about the competency issue. In
fact, Lusk's lawyer in the 1977 conviction knew of the competency
determination and stipulated at trial to the three psychiatric reports that found
Lusk competent. In subsequent appeals of that conviction, none of Lusk's

lawyers addressed the competency claims before the effect of the procedural
bar. We conclude that Lusk's competency challenge could have been raised
before the issue became procedurally barred under Rule 3.850.
12

Lusk also argues that even if the procedural bar stands, he has demonstrated
cause for and prejudice resulting from the default, or at a minimum, he has
raised issues of fact that warrant an evidentiary hearing into cause and
prejudice. In the face of three psychiatric reports finding Lusk competent to
stand trial, we conclude, however, that the district court did not err in finding
no cause and prejudice, and consequently, in denying habeas corpus relief to
Lusk without an evidentiary hearing. Walker v. Davis, 840 F.2d 834, 839-840
(11th Cir.1988). 2 Accordingly, we affirm the district court's decision that a state
procedural bar precludes federal habeas corpus review of Lusk's claims.

13

AFFIRMED.

Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western
District of Pennsylvania, sitting by designation

On June 10, 1977, Lusk filed a pro se petition for a writ of habeas corpus in the
trial court. That petition, however, was withdrawn on June 29, 1977

See Fla.R.Crim.Pro. 3.210(b). Rule 3.210(b) provides that

[i]f, at any material stage of a criminal proceeding, the court of its own motion,
or on motion of counsel for the defendant or for the state, has reasonable
ground to believe that the defendant is not mentally competent to proceed, the
court shall immediately enter its order setting a time for a hearing to determine
the defendant's mental condition, which shall be held no later than 20 days after
the date of the filing of the motion, and shall order the defendant to be
examined by no more than 3, nor fewer than 2, experts prior to the date of the
hearing. Attorneys for the state and the defendant may be present at the
examination.
Here, the record reflects that Lusk received the maximum number of experts
allowed under the rule, and all three experts found him competent.